State Records Committee Appeal Decision 2023-17

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

JENNIFER LEWIS, Petitioner, vs

AUSTIN COMMUNITY SPECIAL SERVICE DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-17

By this appeal, Jennifer Lewis (“Petitioner”), requests records allegedly held by Austin Community Special Service District (“Respondent”).

FACTS

On October 15, 2021, Petitioner submitted a request (the “2021 Request”) to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). For purposes of this appeal, the specific records are not important. What is important is that in her request, Petitioner requested to be notified if she would be charged more than $100 for the records. When processing the request, the Respondent didn’t have the requested records in its possession and had to request them from its engineering firm, Jones and DeMille Engineering. Upon Jones and DeMille producing the records, the firm charged the Respondent $581.20 for the administrative task of retrieving, copying, and delivering the records. When the Respondent received the records and the invoice from the firm, it passed the cost along to Petitioner as a condition of delivering her the records. Petitioner refused to pay the fee and later withdrew her GRAMA request.

Nearly a year later, on October 19, 2022 (the “2022 Request”), Petitioner submitted another GRAMA request seeking the following records:

(1) a copy of the digital recording of the regular meeting of the Administrative Control Board of the Austin Community Special Service District held on Tuesday, October 18, 2022, at 35 West Main, Elsinore, UT, at the hour of 6:30 pm;

(2) a copy of the budget hearing minutes from June 29, 2022, as approved by the board and referenced as “agenda item (1)” of the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;

(3) a copy of any resolutions adopted by the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;

(4) any application for water service that would have been executed by Dale Strickland and submitted to the Administrative Control Board of the Austin Community Special Service District for consideration of water service as per the statements of Chairman Outzen regarding any Dale Strickland water service matters brought up during the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;

(5) a copy of any Administrative Control Board agenda where any Dale Strickland water service matter was brought before the Administrative Control Board, and a copy of any meeting minutes whereby the board heard any Dale Strickland water service matter and authorized any water service to Dale Strickland by any vote of the board;

(6) the date on which the water service to Dale Strickland began and the address where the water service to Dale Strickland had been established, as per Chairman Outzen’s statements during the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022;

(7) a copy of all:
(a) contractor invoices authorized to be paid by the Board regarding any water hookup to Dale Strickland;
(b) Materialmen’s invoices authorized to be paid by the Board regarding any water hookup to Dale Strickland; and
(c) any other invoices received that may or may not have been authorized to be paid by the Board regarding any hookup to Dale Strickland; and

(8) a listing of all revenues received by the Administrative Control Board of the Austin Community Special Service District regarding any water service to Dale Strickland as such matters were brought up by Chairman Outzen during the regular meeting of the Administrative Control Board of the Austin Community Special Service District on October 18, 2022, such as;
(a) hookup fees collected by the board from Dale Strickland;
(b) impact fees collected by the board from Dale Strickland;
(c) water shares surrendered by Dale Strickland in lieu of fees collected; and
(d) any reimbursements made by Dale Strickland to the Board in regard to his newly established water service.

In response, the Respondent denied Petitioner’s GRAMA request on the basis that the past-owing $581.20 for the 2021 Request was still outstanding and must be paid before it would fulfill a new request.

Petitioner appealed to the Respondent’s chief administrative officer (“CAO”) arguing that she withdrew her 2021 Request and that she should not have incurred the cost from Jones and DeMille. However, the CAO upheld the Respondent’s decision and denied the appeal.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On April 20, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

The primary issue before us is that of a fee waiver for the 2022 Request. That is, may the $581.20 fee the Respondent charged Petitioner when responding to the 2021 Request be waived for fulfilling the 2022 Request?

STATEMENT OF REASONS FOR DECISION

The GRAMA states that a person “has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1)(a). However, under certain conditions, a governmental entity may charge a reasonable fee to cover the entity’s “actual cost” of providing a record. Utah Code § 63G-2-203(1)(a). In allowing an entity to charge a fee, the GRAMA provides that “actual costs” may include, among other things, the cost of staff time for search, retrieval, and other administrative costs. Utah Code § 63G-2-203(2)(a)(i)-(ii). Further, a governmental entity may require payment of past fees before beginning to process a request if the fees are expected to exceed $50 or the requester has not paid fees from previous requests. Utah Code § 63G-2-203(8)(a)(i)-(ii). However, the statute also encourages the governmental entity to fulfill the request without charge if it determines that releasing the records primarily benefits the public rather than the requester, the requester is the subject of the record, or the requester’s legal rights are directly implicated by the records and the requester is impecunious. Utah Code § 63G-2-203(4)(a)-(c).

When assessing fee waiver denials, our Utah Supreme Court has given clear guidance that the main question for review is whether the governmental entity’s decision to deny the fee waiver request was reasonable. Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶52, 435 P.3d 179. To make that determination, we must “view the decision in the context of the governing statute,” which means “assessing whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver.” Id. at ¶53 (citing Utah Code § 63G-2-203(4)). Additionally, we are to consider any other evidence we find “relevant to the reasonableness of the denial.” Id. at ¶54.

In this review, we find it significant that the Respondent did not possess the records responsive to the 2021 request. Because of this, it had to obtain copies of the records from Jones and DeMille which charged the Respondent the $581.20 fee for its own administrative burdens in producing the records. As an initial matter, we find it alarming that the Respondent didn’t regularly maintain the records behind the 2021 Request as the law requires. The GRAMA is clear that unless a political subdivision has developed its own records retention schedule, its records must be retained in accordance with an approved retention schedule. Utah Code § 63G-2-604(1)(a)-(c). For the Respondent to not retain and possess records, including those pertaining to government contracts and federal grants – those relevant to the 2021 Request, the Respondent shows a complete disregard for Utah’s open records laws and immediately calls into question the validity of its arguments in this case.

It is true that the GRAMA allows a governmental entity to require payment of past fees before fulfilling a record request that would exceed $50; however, the fees a requester owes must in fact be legitimate fees under the statute. Section 203 allows a governmental entity to charge a reasonable fee to cover its actual cost of providing a record. Though the record is unclear as to the Respondent’s legal basis for passing the fee along to Petitioner for her 2021 Request, the Respondent seemingly relies on Subsection 203(2)(a)(ii) to justify the decision to do so. In pertinent part, “actual cost” is defined as the cost of staff time to retrieve the record, as well as other administrative costs for complying with the request. Utah Code § 63G-2-203(2)(a)(ii). Then, upon receiving her 2022 Request, it relied on Subsection 203(8)(a)(ii) to justify not fulfilling the request because of the still-owing fee. We find that these reliances are in error.

For two reasons we have trouble accepting that Subsection 203(2)(a)(ii) allows the Respondent to pass along to Petitioner the charge it incurred for retrieving the records when it doesn’t retain the records as it should and must retrieve the records from a third party. First, of course, is the fact that the Respondent should be complying with the law and retaining the records Petitioner requested. We can’t accept the notion that the Respondent may run afoul of record retention laws and then pass along the cost for doing so on to a requester. Second, we don’t read the text of the statute as broadly as the Respondent. Section 203 and its provisions apply to the governmental entity’s actual efforts to retrieve records that are in its own possession.

Additionally, we find it significant that Petitioner’s 2021 Request expressly instructed the Respondent to contact her if the cost of providing the records would exceed $100. This request went ignored and the $581.20 fee charged to Petitioner was used as the lynchpin to hold together the denial for the 2022 Request. The mere fact that Petitioner wanted to be contacted if the fees would exceed $100 put the Respondent on notice that she may desire to withdraw her request if the fees accrued too much. Therefore, we conclude that the $581.20 charged for the 2021 Request was not a fee as contemplated by the GRAMA. It was a cost the Respondent incurred for having Jones and DeMille perform its duties under the GRAMA – a cost that Section 203 does not allow to be passed on to Petitioner.

Finally, if the $581.20 is not a fee authorized by Section 203, then it follows that Subsection 203(8) cannot apply. Thus, because the $581.20 cannot be a past fee, the Respondent cannot require that Petitioner pay it before processing any of her record requests. The Respondent is solely and wholly responsible for the $581.20.

ORDER

THEREFORE, for the foregoing reasons, Petitioner’s appeal is hereby GRANTED. The Respondent shall not require Petitioner to pay the $581.20 fee it incurred from Jones and DeMille, and the 2022 Request must be fulfilled without the requirement to pay the $581.20.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect parties’ rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor. Utah Code § 63G-2-403(15)(d)(i)(B). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 1st day of May 2023

BY THE STATE RECORDS COMMITTEE

Nancy Dean
Chair pro tem, State Records Committee